J. A04003/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JOHN ROBERT CARLEY, JR., : No. 1820 WDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, October 16, 2014,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0007537-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 25, 2017

This case returns to us on remand from the Pennsylvania Supreme 

Court for further consideration in light of Birchfield v. North Dakota, 

U.S. , 136 S.Ct. 2160 (2016). After review, we vacate and remand for 

resentencing.

The underlying facts of this case were set forth in our prior Opinion 

filed on June 16, 2016. Commonwealth v. Carley, 141 A.3d 1287, 1288 

(Pa.Super. 2016), appeal granted, 279 WAL 2016 (Pa. Jan. 18, 2017) 

(per curiam). Following a non-jury trial, appellant was found guilty of 

driving under the influence (“DUI”) -- general impairment, driving while 

operating privileges are suspended or revoked, and disorderly conduct.1 On 

 

1 75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 1543(b)(1.1)(i), & 18 Pa.C.S.A. 

§ 5503(a)(1), respectively. 
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October 16, 2014, appellant was sentenced to 18 to 36 months’ 

imprisonment for DUI, and a concurrent sentence of 90 days on the 

summary charge of driving without a license. A sentence of no further 

penalty was imposed on count 4, disorderly conduct. Appellant’s sentence 

for DUI included a mandatory minimum sentence of 12 months’ 

imprisonment, as he had refused chemical testing and this was his 7th DUI 

offense.2

Appellant filed a timely direct appeal; and on June 16, 2016, this court 

affirmed the judgment of sentence, rejecting appellant’s argument that he 

could not be penalized for exercising his constitutional right to refuse a 

warrantless blood test. This court determined that Missouri v. McNeely, 

 U.S. , 133 S.Ct. 1552 (2013), upon which appellant primarily relied, 

did not extend a constitutional right to refuse to consent to chemical testing. 

Carley, 141 A.3d at 1290. Appellant filed a petition for allowance of appeal 

with the Pennsylvania Supreme Court, which was granted on January 18, 

2017, limited to the following issue as framed by appellant:

 

2 See 75 Pa.C.S.A. § 3803(b)(4) (“An individual who violates 

section 3802(a)(1) where the individual refused testing of blood or breath, 

or who violates section 3802(c) or (d) and who has one or more prior 

offenses commits a misdemeanor of the first degree.”); 75 Pa.C.S.A. 

§ 3804(c)(3) (“An individual who violates section 3802(a)(1) and refused 

testing of blood or breath or an individual who violates section 3802(c) or 

(d) shall be sentenced as follows: (3) For a third or subsequent offense, to: 

(i) undergo imprisonment of not less than one year[.]”). Without a finding 

that appellant refused chemical testing, he faced a mandatory minimum of 

10 days’ imprisonment. 75 Pa.C.S.A. § 3804(a)(3)(i).
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When a defendant, following an arrest for DUI, 

refuses to provide blood for the purposes of chemical 

testing, is enhanced criminal punishment under 

75 Pa.C.S. § 3803(b)(4) and 75 Pa.C.S. § 3804(c) 

constitutional, when such refusal constitutes the 

right to refuse a warrantless search, such right 

provided by the Fourth Amendment to the 

Constitution of the United States of America?

Petition for Allowance of Appeal to Pennsylvania Supreme Court, 7/15/16 at 

3.

The petition was otherwise denied. This court’s order affirming 

appellant’s judgment of sentence was vacated, and the case was remanded 

to this court for further consideration of the issue in light of Birchfield.

We recently applied Birchfield in Commonwealth v. Giron, A.3d 

 , 2017 WL 410267 (Pa.Super. Jan. 31, 2017), which controls the case 

sub judice. In Giron, as here, the defendant refused to provide a blood 

sample and received a mandatory minimum sentence of 90 days’ 

imprisonment for a second offense DUI -- general impairment with refusal 

pursuant to 75 Pa.C.S.A. § 3804(c)(2)(i). Id. at *3. Addressing Birchfield, 

this court determined that the defendant’s sentence was illegal where he 

was subject to criminal penalties for his refusal to submit to a warrantless 

blood test:

Recently, the Supreme Court of the United States 

held that states cannot impose criminal penalties 

upon individuals who refuse to submit to a 

warrantless blood test because such penalties violate 

an individual's Fourth Amendment (as incorporated 

into the Fourteenth Amendment) right to be free 

from unreasonable searches and seizures. 
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Birchfield, 136 S.Ct. at 2185-2186. After 

Birchfield, this Court held that sections 3803 and 

3804 impose criminal penalties upon individuals who 

refuse to submit to blood tests. See 

Commonwealth v. Evans, A.3d , , 2016 

WL 7369120, *8 (Pa.Super. Dec. 20, 2016).

Id. at *3.

We hold that, pursuant to Birchfield, in the absence 

of a warrant or exigent circumstances justifying a 

search, a defendant who refuses to provide a blood 

sample when requested by police is not subject to 

the enhanced penalties provided in 75 Pa.C.S.A. 

§§ 3803-3804. As Appellant was subjected to the 

enhanced penalties provided by sections 3803 and 

3804 for refusing to provide a blood sample, his 

sentence was illegal.

Id. at *4 (footnote omitted).

As such, in line with this court’s holdings in Evans and Giron, we are 

constrained to vacate appellant’s judgment of sentence and remand for 

resentencing without consideration of 75 Pa.C.S.A. §§ 3803(b)(4) and 

3804(c)(3).

Appellant had raised an additional issue for our review on appeal, 

whether the trial court erred in admitting evidence of his refusal at trial 

under 75 Pa.C.S.A. § 1547(e).3 Appellant argued that this violated his 

 

3

(e) Refusal admissible in evidence.--In any 

summary proceeding or criminal proceeding in 

which the defendant is charged with a violation 

of section 3802 or any other violation of this 

title arising out of the same action, the fact 

that the defendant refused to submit to 

chemical testing as required by subsection (a) 

may be introduced in evidence along with 
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constitutional right to refuse a warrantless blood test, an argument that this 

court rejected based on pre-Birchfield case law holding that there is no 

constitutional right to refuse chemical testing under Pennsylvania’s implied 

consent law. Carley, 141 A.3d at 1291. We distinguished McNeely on the 

basis that here, the police did not order that a blood sample be taken from 

appellant without his consent. Id. at 1290.

As stated above, the Pennsylvania Supreme Court limited allowance of 

appeal to the issue of appellant’s sentence.4 The admission into evidence of 

appellant’s refusal is not an issue that is before this court on remand. 

Furthermore, while the Court in Birchfield held that motorists may not be 

criminally punished for refusing to submit to a warrantless blood test, the 

Court acknowledged that, “Our prior opinions have referred approvingly to 

the general concept of implied-consent laws that impose civil penalties and 

evidentiary consequences on motorists who refuse to comply. Petitioners do 

not question the constitutionality of those laws, and nothing we say here

 

other testimony concerning the circumstances 

of the refusal. No presumptions shall arise 

from this evidence but it may be considered 

along with other factors concerning the charge.

4 The Pennsylvania Supreme Court did not grant allowance of appeal as to 

appellant’s second issue: “Where a defendant, following an arrest for DUI, 

refuses to provide blood for the purposes of chemical testing, should the 

Commonwealth be permitted to use said refusal, to help establish the guilt 

of said defendant, when such constitutes the right to refuse a warrantless 

search?” (Petition for Allowance of Appeal to Pennsylvania Supreme Court, 

7/15/16 at 3.)
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should be read to cast doubt on them.” Birchfield, 136 S.Ct. at 2185, 

citing McNeely, 133 S.Ct. at 1564-1566 (plurality); South Dakota v. 

Neville, 459 U.S. 553, 560 (1983). See also McNeely, 133 S.Ct. at 1566 

(recognizing, without condemnation, that “[M]ost States allow the motorist’s 

refusal to take a BAC test to be used as evidence against him in a 

subsequent criminal prosecution.” (citations omitted)); Commonwealth v. 

Beshore, 916 A.2d 1128, 1141-1142 (Pa.Super. 2007) (en banc), appeal 

denied, 982 A.2d 509 (Pa. 2007) (admission into evidence of defendant’s 

refusal to submit to blood test not violative of defendant’s privilege against 

self-incrimination (citations omitted)). Therefore, until the Pennsylvania 

Supreme Court holds otherwise, we will not find 75 Pa.C.S.A. § 1547(e) 

constitutionally infirm.

Judgment of sentence vacated. Remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/25/2017